Merchants Mut. Cas. Co. v. Lambert

• Decision Date: 06 February 1940
• Citation: 11 A.2d 361
• Parties: MERCHANTS MUT. CASUALTY CO. v. LAMBERT et al.
• Court: New Hampshire Supreme Court

11 A.2d 361

MERCHANTS MUT. CASUALTY CO.

v. LAMBERT et al.

Supreme Court of New Hampshire. Hillsborough.

Feb. 6, 1940.

Exceptions from Superior Court, Hillsborough County; Johnston, Judge.

Action for declaratory judgment by the Merchants Mutual Casualty Company against Benjamin C. Lambert and others to determine whether the plaintiff was bound by the terms of its policy of automobile liability insurance issued to the named defendant to defend certain actions at law for certain injuries and property damage brought against the named defendant. Judgment for the defendants, and the plaintiff brings exceptions. Exceptions overruled, and judgments for the defendants.

Petition for a declaratory judgment to determine whether the plaintiff is bound by the terms of its policy of automobile liability insurance, issued to the defendant Lambert upon September 19, 1938, to defend certain actions at law for personal injuries and property damage, brought against the said Lambert by the defendant Gorginia Gosselin, administratrix of the estate of George C. Gosselin and the defendant Robert's Express, Inc. Trial by the court, which ordered judgment for the defendants.

The essential facts found by the court are as follows:

"Prior to December 1, 1938, the Merchants Mutual Casualty Company issued to Benjamin C. Lambert, d/b/a B. C. Lambert & Co., a policy of liability insurance covering a 1930 Pierce-Arrow sedan."

This policy contained the following provision: "IV. Automatic Insurance for Newly Acquired Automobiles. If the named insured who is the owner of the automobile acquires ownership of another automobile, such insurance as is afforded by this policy applies also to such automobile as of the date of its delivery to him, subject to the following additional conditions: * * * (2) If the company does not insure all automobiles owned by the named insured at the date of such delivery, insurance applies to such other automobile, if it replaces an automobile described in this policy, and may be classified for the purpose of use stated in this policy, but only to the extent applicable to the replaced automobile; (3) the insurance afforded by this policy automatically terminates upon the replaced automobile at the date of such delivery; and (4) this agreement does not apply * * * (b) unless the named insured notifies the company within ten days following the date of delivery of such other automobile, nor * * * (d) unless the named insured pays any additional premium required hecause of the application of this insurance to such other automobile."

"Between October and December 1, 1938, the 1930 Pierce-Arrow sedan was not used by the defendant Lambert in his business because the car was worn out, out of repair, and not fit to be driven on the public highway. * * * December 1, 1938, the defendant Lambert bought a 1935 Pierce-Arrow car * * * at Moultonboro for the sum of Six Hundred Eight Dollars and Twentyeight Cents (608.28). This car was a seven-passenger model like the 1930 car and was purchased for the defendant Lambert's business to replace the 1930 car for the very same use previously made of the 1930 automobile.

"On December 1, 1938, the defendant Benjamin C. Lambert, while driving the said 1935 Pierce-Arrow sedan which he had just purchased and acquired title to, was involved in an accident with a truck owned by the defendant Robert's Express, Inc. and operated by the deceased George C. Gosselin in which accident the truck of the defendant Robert's Express is alleged to have been damaged, and the deceased George C. Gosselin is alleged to have received personal injuries resulting in his death. At the time of the accident, December 1, 1938, the defendant Lambert still owned the 1930 Pierce-Arrow sedan. It was in his garage with New Hampshire number plates attached and was registered in his name at the Motor Vehicle Department. * * *

"The Court finds and rules that the 1930 Pierce-Arrow sedan was replaced by the 1935 Pierce-Arrow December 1, 1938 when the defendant Lambert, prior to the accident, paid for and accepted delivery of the 1935 car.

"Accordingly the Court orders, adjudges, and decrees that the said policy covered the 1935 Pierce-Arrow sedan at the time of the accident and that the petitioner, Merchants Mutual Casualty Company, shall assume the defense of the suits described in the petition, and within the limits of the policy shall pay any judgments recovered...